INDIA: PROHIBITION OF SEXUAL HARASSMENT AT THE
Description: INDIA: PROHIBITION OF SEXUAL HARASSMENT AT THE WORKPLACE Being in sync with the new law Vikram Shroff Head, HR Law 1 June 6, 2013 2 Indian Law on Sexual Harassment 3 Indian Law on Sexual Harassment The Constitution of India 1997: Vishaka
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slide2. INDIA: PROHIBITION OF SEXUAL
HARASSMENT AT THE WORKPLACE
Being in sync with the new law Vikram Shroff
Head, HR Law 1 June 6, 2013<br>
slide3. 2 Indian Law on Sexual Harassment<br>
slide4. 3 Indian Law on Sexual Harassment The
Constitution of India 1997:
Vishaka vs. State of
Rajasthan The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 The Indian Penal Code, 1860 3<br>
slide5. Approach to Practice 4 The Vishaka Judgment - 1997 Supreme Court acknowledged that:
Sexual harassment is a human rights violation
Sexual harassment is a violation of the constitutionally guaranteed fundamental rights:
Articles 14 and 15: Right to equality
Article 21: Right to life - to live with dignity
Article 19(1)(g) - Right to practice any profession/trade/occupation/business, i.e., a right to a safe environment free from harassment
There is a need for guidelines to fill the legislative vacuum 4<br>
slide6. 5 The Vishaka Judgment - Guidelines Employer’s duty to
Prevent and prohibit acts of sexual harassment Article 21: Right to life - to live with dignity
Redress and resolve grievances pertaining to sexual harassment
The Guidelines = Law, until such time a legislative frame work on the subject is enacted 5<br>
slide7. How do we differentiate? 6 The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013 Object: Prevention + Protection + Redressal What about
me?? 6<br>
slide8. Talent 7 Who is an “Employee”? Regular, temporary, ad hoc employees EMPLOYEE Directly/through an agent/contractor With or without remuneration/voluntary Express/implied terms of employment Probationer/apprentice… 7<br>
slide9. 8 Who is the “Employer”? Employer Supervision Control Management Person discharging contractual obligations
with respect to the employees Person/board/committee responsible for formulation of policies 8<br>
slide10. The “workplace” Workplace Government owned/controlled
establishments Hospitals/
Nursing homes Private sector organisations Sports
institutes,
stadiums, training
institutions Dwelling place in case of a domestic worker AND… Vocational/
Educational
Institutions 9<br>
slide11. The extended “workplace” … Any place visited by
the employee
arising out of;
or during course of;
employment,
including transportation provided by
employer. 10<br>
slide12. “Sexual Harassment” under the new law A demand or
request for sexual
favors Sexual
Harassment Showing
pornography Unwelcome physical, verbal or non-verbal
conduct of sexual nature Making sexually colored remarks Physical contact
and advances 11<br>
slide13. Circumstances Considered as Sexual Harassment Implied/explicit promise of preferential treatment in employment
Implied/explicit threat of detrimental treatment in employment
Implied/explicit threat about present or future employment status
Interference with work or creating an intimidating/hostile environment
Humiliating treatment, likely to affect health or safety 12<br>
slide14. Internal Complaints Committee Mandatory for establishments employing 10 or more employees
ICC to be appointed by an order in writing
At least ½ of the membership of the ICC to be women
ICC to prepare and submit an annual report to the employer and the District Officer 13<br>
slide15. Internal Complaints Committee Presiding Officer – Senior woman employee from the workplace/other admin units/office/organisations. 2 Members – Committed to the cause of women/experience in social work/legal knowledge One member from an NGO/other women’s organisation/familiar with issues relating to sexual harassment. ICC 14<br>
slide16. Local Complaints Committee To be set up in every district
LCC is the grievance redressal body with respect to:
organisations having less than 10 employees
organisations that have not set up an ICC 15<br>
slide17. 16 Grievance Redressal Process Incident of Sexual Harassment Complaint made to ICC/LCC Settlement
Not monetary;
ICC to record settlement and forward to LCC and parties
No further inquiry INQUIRY Reasons for delay to be recorded in writing
Beyond 3 months 3 months Employee requests for a settlement No
settlement Employee does not request for settlement Beyond 3 months 16<br>
slide18. 17 Grievance Redressal Process Inquiry
Principles of natural justice to be followed Inquiry report to be submitted to the Employer and the parties No action to be taken; Assessment of whether charges are false/malicious ICC/LCC to inquire into whether the allegations were made with a malicious intention.
Inability to substantiate the complaint or provide adequate proof doesn’t not amount to malice. Punishment as per service rules;
Monetary penalty payable to the aggrieved woman Appeal to court/tribunal Allegation not proved Allegation proved
[within 60 days] 17<br>
slide19. 18 Interim Reliefs During the pendency of the enquiry, upon written request by the aggrieved employee:
Transfer the aggrieved woman or the respondent to any other workplace
Grant leave to the aggrieved woman up to a period of three months 18<br>
slide20. 19 Determination of Compensation Mental trauma, pain, suffering, emotional distress caused
Loss in career opportunity due to the incident
Medical expenses incurred
Income/financial status of the respondent
Feasibility of such payment in lump sum or in installments 19<br>
slide21. Value Billing 20 Employer’s Obligations Provide a safe working environment
Display at the workplace, details of:
the penal consequences of indulging in acts of sexual harassment
composition of the ICC
the grievance redressal mechanism available to aggrieved employees
Organize workshops and awareness programs for sensitizing employees
Organizing orientation programs for members of the ICC 20<br>
slide22. 21 Employer’s Obligations Cooperate and assist during the course of the inquiry
Treat sexual harassment as misconduct under the service rules
Provide assistance to the aggrieved employee, should she choose to file a police complaint;
Initiate action under the IPC or such other applicable law
Ensure timely submission of reports to the District Officer 21<br>
slide23. Penalties Failure to constitute an ICC
Contravention of any provision under the statute
Fine of INR 50,000 (approx. US$1,000)
Cancellation of business licences
All offences under the statute are non-cognizable 22<br>
slide24. The Indian Penal Code Provision Section 509 - Word, gesture or act intended to insult the modesty of a woman
Offence:
utterance of any word,
making any sound or gesture
exhibiting any object
With an intention to intrude upon the privacy of such woman
Punishment: Simple imprisonment up to 3 years + fine
Nature of offence: Cognizable 23<br>
slide25. Amendment to the Indian Penal Code Provision Section 354 A: Sexual harassment and punishment for sexual harassment
Offence:
physical contact and advances involving unwelcome and explicit sexual overtures; or
a demand or request for sexual favours; or
showing pornography against the will of a woman; or
making sexually coloured remarks
Punishment: Commission of an offence under (i), (ii) or (iii) punishable with rigorous imprisonment for a term of up to 3 years and/or fine; commission of offence under (iv) punishable with imprisonment for a term up to one year and/or fine
Nature of offence: Cognizable 23<br>
slide26. Our Analysis No protection for male employees
No reference to protection from ‘victimization’
Constitution of ICC for different offices
External representation within ICC
Timelines may be unrealistic
Deterrence due to employer action for false or malicious complaints
Ability to deduct from harasser’s salary
Absence of monetary liability on the part of the employer
No protection from other forms of harassment 24<br>
slide27. Thank You vikram.shroff@nishithdesai.com 25<br>
HARASSMENT AT THE WORKPLACE
Being in sync with the new law Vikram Shroff
Head, HR Law 1 June 6, 2013<br>
slide3. 2 Indian Law on Sexual Harassment<br>
slide4. 3 Indian Law on Sexual Harassment The
Constitution of India 1997:
Vishaka vs. State of
Rajasthan The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 The Indian Penal Code, 1860 3<br>
slide5. Approach to Practice 4 The Vishaka Judgment - 1997 Supreme Court acknowledged that:
Sexual harassment is a human rights violation
Sexual harassment is a violation of the constitutionally guaranteed fundamental rights:
Articles 14 and 15: Right to equality
Article 21: Right to life - to live with dignity
Article 19(1)(g) - Right to practice any profession/trade/occupation/business, i.e., a right to a safe environment free from harassment
There is a need for guidelines to fill the legislative vacuum 4<br>
slide6. 5 The Vishaka Judgment - Guidelines Employer’s duty to
Prevent and prohibit acts of sexual harassment Article 21: Right to life - to live with dignity
Redress and resolve grievances pertaining to sexual harassment
The Guidelines = Law, until such time a legislative frame work on the subject is enacted 5<br>
slide7. How do we differentiate? 6 The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013 Object: Prevention + Protection + Redressal What about
me?? 6<br>
slide8. Talent 7 Who is an “Employee”? Regular, temporary, ad hoc employees EMPLOYEE Directly/through an agent/contractor With or without remuneration/voluntary Express/implied terms of employment Probationer/apprentice… 7<br>
slide9. 8 Who is the “Employer”? Employer Supervision Control Management Person discharging contractual obligations
with respect to the employees Person/board/committee responsible for formulation of policies 8<br>
slide10. The “workplace” Workplace Government owned/controlled
establishments Hospitals/
Nursing homes Private sector organisations Sports
institutes,
stadiums, training
institutions Dwelling place in case of a domestic worker AND… Vocational/
Educational
Institutions 9<br>
slide11. The extended “workplace” … Any place visited by
the employee
arising out of;
or during course of;
employment,
including transportation provided by
employer. 10<br>
slide12. “Sexual Harassment” under the new law A demand or
request for sexual
favors Sexual
Harassment Showing
pornography Unwelcome physical, verbal or non-verbal
conduct of sexual nature Making sexually colored remarks Physical contact
and advances 11<br>
slide13. Circumstances Considered as Sexual Harassment Implied/explicit promise of preferential treatment in employment
Implied/explicit threat of detrimental treatment in employment
Implied/explicit threat about present or future employment status
Interference with work or creating an intimidating/hostile environment
Humiliating treatment, likely to affect health or safety 12<br>
slide14. Internal Complaints Committee Mandatory for establishments employing 10 or more employees
ICC to be appointed by an order in writing
At least ½ of the membership of the ICC to be women
ICC to prepare and submit an annual report to the employer and the District Officer 13<br>
slide15. Internal Complaints Committee Presiding Officer – Senior woman employee from the workplace/other admin units/office/organisations. 2 Members – Committed to the cause of women/experience in social work/legal knowledge One member from an NGO/other women’s organisation/familiar with issues relating to sexual harassment. ICC 14<br>
slide16. Local Complaints Committee To be set up in every district
LCC is the grievance redressal body with respect to:
organisations having less than 10 employees
organisations that have not set up an ICC 15<br>
slide17. 16 Grievance Redressal Process Incident of Sexual Harassment Complaint made to ICC/LCC Settlement
Not monetary;
ICC to record settlement and forward to LCC and parties
No further inquiry INQUIRY Reasons for delay to be recorded in writing
Beyond 3 months 3 months Employee requests for a settlement No
settlement Employee does not request for settlement Beyond 3 months 16<br>
slide18. 17 Grievance Redressal Process Inquiry
Principles of natural justice to be followed Inquiry report to be submitted to the Employer and the parties No action to be taken; Assessment of whether charges are false/malicious ICC/LCC to inquire into whether the allegations were made with a malicious intention.
Inability to substantiate the complaint or provide adequate proof doesn’t not amount to malice. Punishment as per service rules;
Monetary penalty payable to the aggrieved woman Appeal to court/tribunal Allegation not proved Allegation proved
[within 60 days] 17<br>
slide19. 18 Interim Reliefs During the pendency of the enquiry, upon written request by the aggrieved employee:
Transfer the aggrieved woman or the respondent to any other workplace
Grant leave to the aggrieved woman up to a period of three months 18<br>
slide20. 19 Determination of Compensation Mental trauma, pain, suffering, emotional distress caused
Loss in career opportunity due to the incident
Medical expenses incurred
Income/financial status of the respondent
Feasibility of such payment in lump sum or in installments 19<br>
slide21. Value Billing 20 Employer’s Obligations Provide a safe working environment
Display at the workplace, details of:
the penal consequences of indulging in acts of sexual harassment
composition of the ICC
the grievance redressal mechanism available to aggrieved employees
Organize workshops and awareness programs for sensitizing employees
Organizing orientation programs for members of the ICC 20<br>
slide22. 21 Employer’s Obligations Cooperate and assist during the course of the inquiry
Treat sexual harassment as misconduct under the service rules
Provide assistance to the aggrieved employee, should she choose to file a police complaint;
Initiate action under the IPC or such other applicable law
Ensure timely submission of reports to the District Officer 21<br>
slide23. Penalties Failure to constitute an ICC
Contravention of any provision under the statute
Fine of INR 50,000 (approx. US$1,000)
Cancellation of business licences
All offences under the statute are non-cognizable 22<br>
slide24. The Indian Penal Code Provision Section 509 - Word, gesture or act intended to insult the modesty of a woman
Offence:
utterance of any word,
making any sound or gesture
exhibiting any object
With an intention to intrude upon the privacy of such woman
Punishment: Simple imprisonment up to 3 years + fine
Nature of offence: Cognizable 23<br>
slide25. Amendment to the Indian Penal Code Provision Section 354 A: Sexual harassment and punishment for sexual harassment
Offence:
physical contact and advances involving unwelcome and explicit sexual overtures; or
a demand or request for sexual favours; or
showing pornography against the will of a woman; or
making sexually coloured remarks
Punishment: Commission of an offence under (i), (ii) or (iii) punishable with rigorous imprisonment for a term of up to 3 years and/or fine; commission of offence under (iv) punishable with imprisonment for a term up to one year and/or fine
Nature of offence: Cognizable 23<br>
slide26. Our Analysis No protection for male employees
No reference to protection from ‘victimization’
Constitution of ICC for different offices
External representation within ICC
Timelines may be unrealistic
Deterrence due to employer action for false or malicious complaints
Ability to deduct from harasser’s salary
Absence of monetary liability on the part of the employer
No protection from other forms of harassment 24<br>
slide27. Thank You vikram.shroff@nishithdesai.com 25<br>